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10 Ways to Lose an MSPB Appeal: Fail to submit relevant documents prior to the hearing.

May 27, 2007

10 Ways to Lose an MSPB Appeal: Fail to submit relevant documents prior to the hearing.

Posted By
The Law Offices of Eric L. Pines, PLLC

The seventh of “10 Ways to Lose an MSPB Appeal” is to fail
to timely submit relevant documents prior to the hearing.

When you receive the Acknowledgment Order and/or Scheduling Order from
the Judge, usually within 14-30 days of filing your appeal, there will
be a section in either or both of those Orders directing you to produce
“Pre-Hearing Submissions” to the Administrative Judge. Typically,
Judges require this document 3-10 days before the Pre-Hearing conference,
but read your Acknowledgment and Scheduling Order to be sure. The Pre-Hearing
Submissions will include, among other things, a list of documents that
either party would like to use as evidence at the hearing.

If you have a document that you might like to use, put it on the list.
There is no requirement that you use it, but if you had, or could have
had, the document in your possession in your control at the time of the
Pre-Hearing Submission deadline, 99% of all Judges are either going to
not allow you to admit the document or are going to give the document
no evidentiary value.

The reason that this rule exists is to prevent “trial by ambush”:
both sides should be able to know the other side’s evidence before
the hearing. The rule cuts in favor of Appellants as much as (or more
than) it cuts in favor of Agencies, so don’t complain that it is not fair.

As a former Agency Counsel, it was painful to watch an Appellant, who had
a document that might have helped his or her case, have the document excluded
from evidence because they didn’t follow the rule. (Rest assured
that an Agency Counsel won’t push this issue unless they are sure
the document is harmful to their case.)

If you feel strongly that the Judge should consider the late or un-filed
document, don’t argue with the Judge – you won’t win.
Ask for a reconsideration of the Judge’s decision, ask for a clear
ruling stating that the admission is denied, and make an “offer
of proof”. This will preserve the error for a petition for review
to the full Merit Systems Protection Board, if the document turns out
to have a significant effect on the outcome of your case.

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